Second New Year’s Eve in Silivri: The priority of the judiciary should be respect for individual freedom

11/01/201912:37

OSMAN KAVALA

In a few days it will be my second New Year’s Eve in Silivri. The end of the year is a time to reflect on the past year and make resolutions for the year ahead. I cannot do this here because I spent the entire 2018 in my room and I do not know when (or if) I will return to my normal life in the year ahead. However, the calm and serene atmosphere of solitude in my room is convenient for reflections and plans for longer periods of time. When I was taken into custody I was 60 years old and I was thinking that it was the time to start taking of stock.

The fact that there is still no indictment filed on my case creates uncertainty, but while I am waiting I try not to think too much about what has happened to me; I try to feel as if my isolation is by my choice, like a hermit’s. Nevertheless, in this environment where I am, seeing some of the prisoners and convicts that I know, listening to the stories of those that I do not know (during trips to the hospital for example), invites me to wonder how this unjust system works, how the decisions about arrest warrants, serious criminal charges, life sentences are taken easily.

Reklam

There have been various observations on the serious problems of the judiciary system and the factors behind them. In his article published in Cumhuriyet newspaper on the 5th of April 2018, Orhan Gazi Ertekin wote that “a strange implementation of the ‘terror law’, which makes it possible to take anyone to court on terrorism charges, has become ‘a black hole.”

Taha Akyol, in his article published on the 4th of July 2018 in Hürriyet newspaper —sadly he cannot write for Hürriyet any longer— while criticizing the courts’ decisions not to comply with the Constitutional Court’s decision to release Şahin Alpay and Mehmet Altan, pointed at the numerous cases of trials under arrest which could have been conducted without imprisonment, as in the cases of unjustly arrested writers and journalists; he urged “the justice system to step out of the psychology created by the State of Emergency Regime (OHAL).”

In his piece published on the 11th of December 2018 in Karar newspaper, Ahmet Taşgetiren referred to Prof. Dr. Kemal Gözler’s opinion that extrajudicial factors devalued legal expertise related to the interpretation of the legal norms and quoted Gözler’s statement “No legal interpretation theory has an influence on judges, half as strong as that of the signals received from political circles”. As Taşgetiren warned, “where norms do not apply it means that there are other factors at work. Then norms would no longer be meaningful, the law of the mighty would somehow prevail.”

Reklam

Apart from factors such as the increasing number of terror charges, the signals transmitted to the judiciary from the political circles, and the psychological atmosphere of State of Emergency, the fact that the judiciary has been in a position to deal with political trials for more than 10 years is a significant cause of the erosion of legal norms. By political trials, I mean those held after the end of a violent power struggle or the conspiracy trials. Where those now in power call upon the former power holders to account for the past, crime charges come to be defined by political responsibility; consequently, the highest ranking persons usually receive the heaviest sentences. Yassıada trials conducted after the military intervention of 1960 constitute a striking example of this type of political trials and their unlawfulness. The public support that those who are now in power have and the stability of the new rule are among the factors which determine the scope and breadth of these trials.

Trials related to conspiracies have different varieties. As some of the conspiracies against those in power remain solely as attempts, the cases related to those follow more complicated paths. While it is known who were those in positions of responsibility in an overthrown government, the conspiracies are planned in secrecy and those who were involved might not be possible to clearly identify. In the case of the aborted conspiracy attempts, therefore, identifying the organizers becomes an additional task for the judiciary. It is also common fact that these trials are used by those in power in order to eliminate the opposition. The trials of the Stalin era in the Soviet Union constitute probably the best known example. According to the approach that was followed at the time, people who were not connected with the same organization and did not even know each other could be seen as participants in the same conspiracy and held responsible for the deeds of others; the indication of a unity of purpose was sufficient for this.

The perpetrators of the assassination attempt of 1926 against Ataturk which was planned to take place in Izmir were members of the Committee of Union and Progress. However, at what level of hierarchy this action was planned within the committee and with whom the personal responsibilities actually lied is a controversial issue. Especially the death penalty received by a respected politician such as Cavid Bey, the Ottoman Finance Minister who was accused of being involved in the conspiracy attempt, has contributed to and enhanced the beliefs that the process had taken the form of a political trial.

The two important political trials recently held in our country are the Ergenekon and Balyoz trials. The political force behind both trials originated from a formation that was close to the ruling party at the time. In these cases, the charge of a coup attempt was instrumentally used to receive support from the ruling party and to legitimize the purges in state institutions. Turkey then experienced a real coup attempt, at a time when the nature of the Ergenekon – Balyoz conspiracy plot, which had caused innocent people to be linked with and punished for fictitious crimes, was just being uncovered. In its difference from the previous military interventions in our country, the motor force behind the aborted coup attempt was not the army hierarchy, but an organization with its muscle and brain outside the army. The characteristics of this organization made the task the judiciary had to handle even more complicated. The judiciary, which had not yet internalized the lessons derived from the Ergenekon and Balyoz trials, found itself in a position to identify and punish those who participated in the coup attempt of July 15.

An important portion of those who had a role in the coup attempt were associated with the organizations and formations around Fethullah Gülen which had for a long time expanded on a strong basis of legitimacy. Apart from the infiltration in civil society and business circles, the expansion of the Gülenist zone of influence within strategic state institutions, in the police force in particular, was a source of concern for people like myself; nevertheless, it was not perceived as a problem by many others. In fact, Gülenist affiliation could often be regarded as a good reference. During this period, a number of pro-Gülen organizations and circles were established, without being associated with each other within a hierarchical order. While the borders of a Gülenist organization which called itself the ‘Service Movement’ were expanding, the difference between those who had a positive attitude towards Fethullah Gülen and this ‘movement’ on the one hand, and those cadres who were fully engaged with the goal to seize power on the other has become increasingly unclear.

The organization often followed a strategy of keeping the Gülenist identity at the background and even invisible, this was the case especially in its activities abroad. Gülenist organization operated in secrecy for a long time and its criminal activities which included the theft of the questions of the Public Personnel Selection Examination (KPSS), conspiracies against the Modern Education Foundation (Çağdaş Eğitim Vakfı) and the Association for Supporting Contemporary Life (Çağdaş Yaşamı Destekleme Vakfı), producing fake evidence used in the Balyoz trials, were not recognized by Gülen sympathizers; because Fethullah Gülen, was perceived as a ‘sufi religious scholor’, ‘a peaceful and humanist opinion leader’, it was considered inconceivable that those related with him would be involved in such operations.

When the 15th of July arrived, many of the people within the Gülenist circles had no knowledge about the preparation of a coup; among them there were many intellectuals who stood up against coups all their lives such as Nazlı Ilıcak, the journalist who is now in prison.

The Judiciary, instead of individually unthreading the knots of all the networks formed by all these different people and without seriously examining whether the individual acts constituted crimes, seems to have found a solution similar to the cutting with as sword of the Gordion knot by Alexander the Great by associating all those with some relationship to Gülen circles with terrorist crimes.

Such approaches damage the norm of the individuality of the crime, devalues the presumption of innocence. It then becomes inevitable for such an erosion of norms to extend to all other applications of the penal law. In my opinion, after all this time that has passed since the coup attempt, in the new year the priority of the judiciary should be to make the distinction between people who committed a crime and those who did not, and to reinforce as a norm the presumption of innocence, that is the respect for individual freedom.